Photo: iStock
Photo: iStock

An ancestral property becomes self-acquired after its partition

  • All legal heirs including daughters are entitled to an equal share in the joint Hindu family property
  • Whenever an ancestor inherits any property from any of his paternal ancestors up to 3 generations above him, then his legal heirs up to 3 generations below him would get an equal right as coparceners in that property

ancestral property, legal heirs, daughters, HUF, coparceners, Hindu Succession Act, partition of ancestral property

I have two sons. I adopted my cousin’s daughter when she was born but there is no legal paperwork. From the legal perspective, should she be included in the Will as she is also inheriting assets from my cousin?

—Name withheld on request

A Will is nothing but a document that records the wishes of the testator in respect of the distribution of his assets. Hence, you can distribute your assets in the manner you may desire. Please note that a Will is required to be attested by two or more witnesses, each of whom have seen you signing or affixing your mark on the Will and that each of the witnesses have signed the Will in the presence of the testator. There is no other formality one needs to do to make a valid disposition of his estate. However, please note that the adoption should not have happened in terms of the requirement that she would become entitled to your estate in the same manner as of your biological son or daughter. Otherwise, it is absolutely your prerogative to bequeath any of your assets in favour of your cousin’s daughter.

I am 60 years old and I have two daughters and three sons. I have an ancestral property in my name. I require money due to some personal reasons. I have decided to sell the property to any of my children who can quote the highest price. Can this be challenged?

—Mani Shankar

It is pertinent to understand the concept of “ancestral property" under the Hindu laws. Generally, it would connote that whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property. Such a property should not have been divided by the members of the joint Hindu family. When a division or partition happens in a joint Hindu family, it becomes a self-acquired property in the hands of a family member who has received it. After the codification of the Hindu Succession Act, 1956 and post the amendment in 2005, all legal heirs, i.e., daughters are also entitled to an equal share in the joint Hindu family property. Assuming that you are the sole surviving heir of the ancestral property and assuming that the property comes to your hand absolutely since several years and there is no resistance from anyone as regards to the ownership, then you may sell the property as per your wishes by executing a sale deed in favour of any of your children who quotes the highest price and such a sale deed is duly stamped and registered. However, to answer your query in respect of the sale being challenged, it may be challenged even if you are an absolute owner and have full rights and are entitled to sell and deal with the property.

We live in an ancestral property. I live in a joint family and my father has promised to bequeath his share in this property to his sister who is married and lives in another city. He is planning to execute this via a Will. Is it possible for me to contest this decision after the Will is made?

—Santosh Pandey

It is pertinent to understand the concept of “ancestral property" under the Hindu laws. Whenever an ancestor inherits any property from any of his paternal ancestors up to three generations above him, then his legal heirs up to three generations below him would get an equal right as coparceners in that property.

Assuming that your father and his sister are the sole surviving legal heirs to the ancestral property and now it has come in their hands as co-owners, then your father is within his rights to bequeath his undivided share in the property to his sister under his Will.

However, if there is no partition or division and it still remains an ancestral property, probably you may become entitled to claim your rights, which shall be limited to what your father is entitled to in the ancestral property.

Aradhana Bhansali is partner, Rajani Associates. Queries and views at mintmoney@livemint.com

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